'Right-to-work' would deliver another blow to employees

February 03, 2011|DAVID HOFFMAN

VIEWPOINT

A fundamental weakness of the Bill of Rights is that it does not apply to the private sector. As a result, people who exercise their legally protected rights, such as the right to freedom of speech, may be exempt from governmental retaliation for doing so, but they can still face retaliation from their employers.

One consequence of this reality is that workers are often reluctant to talk and/or write about the rights, and plights, of the working class. Indiana, as its courts incessantly remind us, is an "at-will" employment state. The legalese that fuels "at-will" employment infers an equality between the employer and employee: Each is there at the will of the other and either can terminate the employment relationship at any time and for any reason, or for no reason whatsoever.

Realistically, of course, everyone knows this is a myth: An employer who unjustly severs a relationship with an employee rarely suffers any ill effects for doing so; however, employees who sever relationships with employers, particularly without providing adequate notice, are frequently given poor references when they apply for other jobs. In addition, persons unemployed long enough to fall behind in their bills may find their search for new employment hampered by pre-employment credit checks, since many employers automatically presume that bad credit is indicative of irresponsibility or dishonesty on the part of the applicant, instead of considering that an applicant's credit rating may have been detrimentally affected by circumstances beyond his/her control.

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Of course, there are a few exceptions to the "at-will" doctrine. Federal laws prohibit discrimination based upon race, gender, religion, age, national origin and disability, although many employment attorneys will acknowledge that in this conservative judicial district, fraught with nepotism and cronyism, very few cases are resolved in favor of the employee.

Indiana law also protects workers from being discharged if they file workers' compensation claims, or if they dispute the adequacy of the workers' compensation they are scheduled to receive. But Indiana courts have consistently refused to expand this protection to other labor laws. In a 2007 case, for example, an employee was fired after complaining that his employer had violated an Indiana statute by wrongfully denying him overtime pay. The Indiana Supreme Court upheld his firing because he had been employed "at-will."

In other words, if workers complain about being denied a legally protected right (except for workers' compensation), they risk losing their jobs entirely. And if they file a lawsuit to protest this loss, they run the further risk of being blacklisted by prospective employers who often view them as troublemakers.

Even the so-called protection against retaliation for people who file for workers' compensation is woefully inadequate. I once attended a seminar where a pro-business attorney advised employers how to get around Indiana law: "Simply wait a couple of years so that any relationship between the workers' compensation claim and the worker's discharge becomes tenuous."

Also, Indiana courts have expanded workers' compensation to apply to virtually all situations in an employer-employee relationship, which means that, except in the narrowest of circumstances, employees can never sue their employers, even when an employer's negligence is egregious. By contrast, an employer can work to deny workers' compensation to an employee by alleging the employee was under some form of alcohol or drug-induced impairment.

In rationalizing these decisions, the courts routinely proclaim that it is up to the state legislature to expand protections for workers. But given that pro-business "right-to-work" legislation is now being debated instead, the chances of this happening are nil.

Of course the primary question is why such "right-to-work" legislation is even necessary in an employment environment that is likely to be anti-labor for decades, if not centuries to come. Already a common statement made by the common worker is, "At least I have a job." Naturally this means that the fear of losing that job will preclude all but the most courageous from asking for a raise, promotion, benefits, full-time employment or the opportunity to unionize.

What this proposed legislation actually proves is something that most perceptive people have realized all along: Government has become contemptuous of the working class. And anyone who does not sign his/her own paycheck, and whose employment is contingent upon the whims of others, is a member of this class, whether they want to acknowledge it or not.